Expulsion Of Students Covered By IDEA And Section 504

by JoAnn M. Hart, Attorney, Boardman & Clark LLP

This Update is a follow-up to the February 2018 Expulsion Overview And Pointers Update by Doug Witte, covering general expulsion law and procedure.  This Update will cover some of the most important state and federal law considerations and procedures applicable to expulsion of a student covered by IDEA or Section 504 of the Rehabilitation Act of 1973.  Because of the complexity of the provisions of IDEA covering removal of students for disciplinary reasons, this Update does not attempt to cover every such provision.

General Principles

  1. Students with disabilities may not be expelled for conduct that is determined to be caused by, or a “manifestation of,” the student’s disability. 
  2. Students with disabilities may not be disciplined more severely than nondisabled students for the same misconduct. 
  3. IDEA provides very specific substantive and procedural protections and requirements which must be followed when considering expulsion of a student, because expulsion constitutes a “change in placement.” 
  4. The protections and requirements relating to expulsion of students covered by Section 504 largely mirror those of IDEA, with a few exceptions noted below.
  5. Parents and adult students can challenge the outcome of a manifestation determination or an expulsion they believe to be in violation of IDEA or Section 504 by filing a request for a due process hearing under IDEA or Section 504, or by filing a complaint with DPI (IDEA only) and/or OCR. 

Intersection Of State Expulsion Law And Federal Disability Laws: Ten Day Limit On Suspension Prior To Hearing 

Under Wisconsin’s suspension and expulsion law, a district can suspend a student for up to five school days for certain types of misconduct.  If a notice of expulsion hearing has been sent by the fifth school day of suspension, Wisconsin law also provides that the suspension of the student may be extended for up to a total of 15 school days prior to an expulsion hearing.  However, a student covered by either IDEA or Section 504 may not be suspended for more than a total of ten school days prior to the expulsion hearing.  In addition, certain other provisions of federal law may further limit the length of time a district may suspend a student without services prior to holding the expulsion hearing.

Manifestation Determination Requirement 

A student cannot be expelled if the misconduct which is the basis of the expulsion referral is a “manifestation” of his or her disability.  A determination of whether the conduct at issue is a manifestation of the student’s disability must be made within ten school days of any decision to change a student’s placement because of the misconduct.  A “school day” is defined as any day, including partial day, that students are attending school for instructional purposes.  DPI has explained that the ten days begin to run as soon as the school decides to refer the student for an expulsion hearing.  In other words, if the misconduct occurs on May 1, and the District decides that it is going to take the student to an expulsion hearing on May 1, the ten school days in which to hold the manifestation determination begin to run on May 1.  OCR has stated that Section 504 also requires a manifestation determination prior to conducting an expulsion hearing. 

Conduct Of The Manifestation Determination Meeting

The manifestation determination must be held within ten school days of the decision to seek expulsion, and that timeline may not be extended.  The manifestation determination must be scheduled at a mutually agreeable time and place.  If the parent cannot attend in person, the district must attempt to provide alternative ways for the parent to participate.  If the district cannot secure the parent’s participation, the district must still hold the manifestation determination within the ten school days and document the attempts at scheduling the meeting with the parent. 

The meeting should be attended by “relevant” members of the IEP team.  Under the specific language of IDEA, it does not have to be the full IEP team, but must include a district representative, the parent, relevant members of IEP team, and others with knowledge of the student.  However, DPI has encouraged districts to use the full IEP team for the manifestation determination meeting, because if the conduct is found to be a manifestation of the student’s disability, the IEP team will ultimately be required to take additional steps, such as develop a functional behavioral assessment (FBA) and develop or revise an existing behavioral intervention plan (BIP).  Discussion of possible placement changes will also be appropriate for the IEP team. 

Information relevant to the decision of whether the conduct was a manifestation of the student’s disability includes the student’s IEP, any Functional Behavioral Analysis (FBA) or Behavioral Intervention Plan (BIP), information provided by the parents, including medical information, records of observations of the student, progress monitoring information, new or existing evaluation results, and any other relevant information.

Districts should be aware, and train IEP members, that the manifestation determination meeting is not for the purpose of determining whether the student committed the misconduct, or whether or how the student should be punished.  That is for the school board to decide after listening to the evidence at an expulsion hearing, if one is held.  The inquiry at the manifestation determination meeting is, “If the student engaged in the conduct as alleged, is that conduct a manifestation of the student’s disability?”  Therefore, the manifestation determination meeting should not be turned into an evidentiary hearing on the student’s guilt, or pleas by the parent or student regarding appropriate punishment.

To determine if the conduct was a manifestation of the student’s disability, the group must decide whether the conduct was caused by or had a direct and substantial relationship to the student’s disability, or was a direct result of the district’s failure to implement the student’s IEP.  If the group decides that either of these questions should be answered “yes,” the conduct will be determined to be a manifestation of the student’s disability.

The team must make these decisions on a case-by-case basis, by looking at the specific nature of the conduct at issue, and the specific circumstances for the student.  For example, if a student has a disability that causes her to have difficulty with impulse control, the team should consider whether the conduct at issue involved an action that was impulsive, or whether the alleged conduct required planning and forethought, or unfolded over a period of time.

If the parent and the school district representatives at the manifestation determination meeting do not agree on whether the conduct was a manifestation of the student’s disability, the district’s representative must make the decision, just as is the case when there is no consensus at an IEP meeting.  The parent’s recourse is to request a due process hearing, available under IDEA and section 504, to appeal the district’s decision.  This hearing can be requested on an expedited basis.  Parents can also file a complaint with DPI or OCR.  The expulsion hearing can proceed while the due process hearing is being scheduled, held and decided.  The due process decision could result in the expulsion being overturned.

More guidance from DPI on making manifestation determinations can be found in its Information Update Bulletin 14.02, published in December 2014, and available on DPI’s website.

Consequence Of The Manifestation Determination Decision

If the conduct is determined not to be a manifestation of the disability, the district may impose the same discipline as it would on a student without disabilities, including expulsion.  If the conduct is determined to be a manifestation of the student’s disability, the district cannot go forward with the expulsion.  In that instance, it is appropriate for the IEP team to consider changes to the student’s program and/or placement.  The IEP team must also go forward with other procedural steps.

Removal Of A Student Even When the Conduct Is A Manifestation Of The Disability

If the conduct is determined to be a manifestation of the student’s disability, the district can unilaterally remove the student to an Interim Alternative Educational Setting (IAES) for not more than forty five (45) school days in three limited circumstances: 

  1. The student: brings a weapon to school or possesses a weapon at school, on school premises, or at a school function.
  2. The student knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance while at school, on school premises, or at a school function.
  3. The student inflicts serious bodily injury upon another person while at school, on school premises, or at a school function. 

For the purpose of these three provisions, the following definitions apply: 

  1. “Weapon” is defined as:  weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 1/2 inches in length.
  2. “Controlled substance” is defined as: A drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act.  “Illegal drug” means a controlled substance, but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health care professional.
  3. “Serious bodily injury” is defined as: Bodily injury which involves a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.  Factors considered: the need for medical attention, the nature and extent of pain, and the duration of the harm.

If none of these three circumstances are present, but the district believes that maintaining the current placement is substantially likely to result in injury to the student or others, the district may request a change of placement through a due process hearing.  When a due process hearing has been requested, the student remains in the alternate setting established by the district pending the decision of the hearing officer, or until the time specified for the disciplinary change of placement ends, whichever comes first.  The hearing must be expedited. 

Districts may also seek relief from a circuit court judge by seeking what is referred to as a “Honig injunction” to remove the student from school.  The showing needed is similar to what is required to get a change of placement through a due process hearing: that maintaining the current placement is substantially likely to result in injury to the student or others.

IDEA Requirement To Provide Educational Services After Expulsion Or Other Removal 

Under IDEA, a district must provide educational services to an expelled student to enable the student to continue to participate in the general education curriculum and make progress toward the student’s IEP goals.  A district does not have to provide exactly the same services and instruction to the expelled student.  The IEP team should make an individualized decision for each student, to ensure that the program of services provides the student with FAPE.  

By contrast, students covered by Section 504 are not entitled to receive educational services during expulsion.  However, if a district elects to provide educational services to non-disabled students who are expelled, it must also provide similar services to students with disabilities. 

Steps To Take Immediately Upon Suspension Of A Student With Disabilities 

If the student being considered for expulsion is covered by either IDEA or Section 504, the following steps should be commenced as soon as the student is suspended:

  1. Schedule the manifestation determination meeting. 
  2. Determine the total number of days the student has been suspended in the current school year and take all actions mandated under IDEA if the cumulative days of suspension in the current school year equal ten, or will reach ten during the anticipated current suspension, including conducting a functional behavior analysis, and creating a Behavior Intervention Plan or updating an existing one. 
  3. Determine whether the cumulative days of suspension constitute a pattern of suspension that could be considered a “change in placement” and take all steps required under IDEA. 
  4.  Review the IEP or Section 504 plan to determine whether the student is currently receiving all services required by the IEP or plan, whether the IEP or plan is appropriate, and whether the district is meeting all procedural requirements under the applicable laws.
  5. DPI recommends that if a student is removed for several days, the IEP team should meet to review IEP goals, services, and positive interventions, supports and strategies to determine if they are effective in meeting the student’s behavioral needs, and revise the IEP if necessary.

Conclusion 

When considering expulsion of a student with disabilities, school districts must be careful to follow all procedural rules: the rules for expulsion under Wisconsin law and the rules providing additional procedural safeguards for students covered by IDEA and Section 504 regarding expulsion.  The outline above is intended to alert administrators to the general requirements of IDEA and Section 504 in expulsion situations.  In those situations where the issues are particularly complicated, a district may wish to seek advice from their legal counsel. 


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